Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

‘You Want to Get Them While the Teardrops are Warm’: Prosecutors Swap Strategies for Turning Overdose Deaths into Homicides

Ocean County Prosectutor’s Office (YouTube)

‘You Want to Get Them While the Teardrops are Warm’: Prosecutors Swap Strategies for Turning Overdose Deaths into Homicides

Ocean County New Jersey Prosecutor Joseph Coronato said the best way to prosecute a drug overdose as a homicide is to find a witness close to the victim who may have used or bought drugs with them. “You want to get them in an emotional state,” Coronato said. “You want to get them while the teardrops are warm.” What Coronato neglected to mention is that the witnesses may wind up with a homicide charge.

Coronato explained his tactics during a November 15 webinar entitled, “Strategies for Prosecuting Drug-Induced Homicide Cases,” hosted by the Association of Prosecuting Attorneys, a Washington D.C.-based nonprofit. The webinar’s premise is that prosecuting overdoses as homicides is an effective tool in law enforcement’s “heroin response strategy.” Under what’s called “strict liability,” a person who provides drugs that lead to a fatal overdose can be charged with manslaughter or homicide, depending on the state.

Last week, The Appeal reported on research that tallied a 300 percent increase in “drug-induced homicide” prosecutions from 2011 to 2016. Analyses by the Drug Policy Alliance and the Health In Justice Initiative at Northeastern University’s Law School demonstrate that these prosecutions increase the likelihood of fatal overdoses — the very problem they’re trying to solve — by scaring drug users and witnesses away from calling 911.

Edward Beach, a drug intelligence officer at the High Intensity Drug Trafficking Area program in New York and New Jersey, explained during the webinar that he targets “major traffickers.” But most drug-induced homicide prosecutions don’t target “major traffickers” — they target friends, family and romantic partners of the overdose victim.

“Out of the 32 drug-induced homicide prosecutions identified by the New Jersey Law Journal in the early 2000s, 25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner,” according to the Drug Policy Alliance.

A case brought by Paul Caccaviello, assistant District Attorney in Berkshire County Massachusetts, illustrates how prosecutors target peers of the overdose victim, not big-time dealers. Caccaviello explained during the webinar how in 2008 he successfully prosecuted Dawn M. Cote for selling multiple fentanyl patches that led to her friend’s death. Cote had no history of drug dealing. She was prescribed the fentanyl patches and then sold them to her “best friend” and neighbor, who overdosed. In November 2009, Cote was sentenced to six years in state prison for manslaughter.

“Every overdose scene becomes a homicide scene,” Elie Honig, director of the New Jersey Attorney General’s Criminal Division, wrote in materials accompanying the webinar. “So there has to be … a cultural shift to investigating these types of cases.” Drug overdose is now the leading cause of accidental death among Americans 50 and under. So now, in the eyes of prosecutors, these deaths are all potential homicide cases.

Symbolic “Justice”: California’s New Rape Kit Laws Fail to Address Existing Problems with Investigating Rape

Dispatches is our series from organizers, attorneys, officials, and others working at the frontlines of local criminal justice reform.

U.S. Air Force photo
Senior Airman Ashlin Federick

Symbolic “Justice”: California’s New Rape Kit Laws Fail to Address Existing Problems with Investigating Rape

Dispatches is our series from organizers, attorneys, officials, and others working at the frontlines of local criminal justice reform.

On October 12, 2017, California Governor Jerry Brown signed several rape kit related bills including Assembly Bill 41, known as the DNA evidence bill, and Assembly Bill 1312, known as the Sexual Assault Victims’ Bill of Rights. “For rape survivors like myself, these civil rights in California mean the difference between justice or lost justice,” Amanda Nguyen, founder of RISE, a Washington-DC based non-profit organization that advocates for sexual assault and rape survivors, told East County Magazine. “California survivors must have equal rights under the law.”

But despite the media and political fanfare, such legislation does not meaningfully tackle the problematic policies that caused tens of thousands of rape kits to languish in police custody statewide. It also fails to address police departments like Oakland’s that deem an inordinately high number of rape allegations “unfounded” — a classification whereby detectives declare the allegation false or baseless, often with little or no investigation.

AB 41, sponsored by San Francisco Assemblymember David Chiu, requires that beginning in 2018 every rape kit be logged and tracked in the California Department of Justice’s Sexual Assault Forensic Evidence Tracking (SAFE-T) database within 120 days of the kit’s collection. Failure to comply could result in a misdemeanor, though it’s unclear who would be charged. And while Assemblymember Chiu tweeted that AB 41 is “tracking the backlog of rape kits to give survivors the justice they deserve,” the law does not require police departments to account for past neglected evidence in their custody.

AB 1312, co-sponsored by San Diego Assemblymember Lorena Gonzalez and Palo Alto Assemblymember Marc Berman, amends California’s existing Crime Victims’ Bill of Rights and Sexual Assault DNA Bill of Rights. The bill requires stronger enforcement of select crime victims’ rights and establishes some new rights, such as the ability to take a free shower at medical facilities after a forensic exam. It also requires that police departments preserve rape kits from unsolved cases for at least twenty years, and notify victims before destroying evidence.

“Survivors deserve to know their rights and deserve access to resources,” tweeted San Diego Sheriff Dave Myers on September 30. “Tell @JerryBrownGov to sign #AB1312.”

AB 1312 was lauded by law enforcement and the media alike; even hailed it as a “…Landmark Step in the State” for sexual assault victims that will give “…much-needed protections to survivors of sexual assault.” Unmentioned in the exultant media coverage however, is the fact that victims cannot take any civil or criminal action (most laws disqualify citizens from having a cause of action to sue) if the state fails to adhere to the law’s directives. Virtue-signaling about unenforceable rights aside, AB 1312 also sidesteps the root problem of law enforcement failing to thoroughly investigate rape complaints. A free shower after a forensic exam is a courteous gesture, but it does not address the fact that in 2016, California police departments let more than half of reported rapes go unsolved or unpunished.

California law enforcement agencies have reported rape at “unfounded” rates in recent years as high as 55% in Concord, 53% in Berkeley, and 46% in Oxnard, and a statewide clearance rate of 40.8% in 2016 (higher than the national average of 37%). AB 40 and AB 1312 do nothing to rectify these fundamental investigative problems. If legislators and victim advocates are truly invested in justice for rape victims, they should focus on enforcing the existing laws against rape.

More in Explainers

Finding a Place for Restorative Justice

A new project chronicles the myriad alternative visions of justice taking place in the U.S. and Canada.

Finding a Place for Restorative Justice

A new project chronicles the myriad alternative visions of justice taking place in the U.S. and Canada.

Over the last ten years, criminal justice reform has gone mainstream. Ideas like reducing prison populations, finding alternatives to incarceration, and accounting for the human and fiscal toll of mass incarceration are now far from radical or partisan; they’re on the lips of centrist politicians and Americans of many stripes. In the background of that growing discussion lingers an important question: If the criminal justice system as we know it transforms dramatically, shrinks, or becomes obsolete … then what?

That discussion often leads to another concept that has grown in popularity in recent years: restorative justice.

“Even if there were no prisons, we would still need a way to deal with what to do when someone hurts someone else,” says Professor Sonya Shah, co-author of a new report from the Zehr Institute for Restorative Justice.

Because there are so many permutations of restorative justice practiced by so many different groups, there is no shared definition or model. But in broad terms, this model of justice tends to revolve around a common community-based goal of addressing and repairing harms and violence outside of the traditional confines of the legal system. The diversity of approaches to that common goal is what led Shah and her colleagues to travel to five locations across the U.S. and Canada to meet with and listen to a variety of groups engaged in the practice.

The result of their work is the “Restorative Justice Listening Project.” Released on November 16th, the report chronicles what they learned from visiting restorative justice practitioners in Minnesota, Maryland, British Columbia, California’s Bay Area, and the Navajo Nation of New Mexico.

For many indigenous communities, the practice of responding to conflict without incarceration or courts is nothing new. While they might not label it restorative justice, taking a holistic approach to harms caused by community members is a long-held tradition, whereas many Western communities are only recently beginning to think beyond the tried and true “lock ’em up” response to crime.

“One of the things we recognized in this whole process is that we really have to uplift the indigenous, and the many types of indigenous restorative justice,” says Shah. She noted “the typical Western tendency” to claim expertise after “learning one thing from one indigenous person,” rather than talking to many different groups.

“We are such a multicultural society, but I do think there are way for us to cross into each other’s worlds with a lot of respect, humility, and growth,” Shah tells The Appeal.

In addition to the work of indigenous practitioners, Shah notes that criminal justice reform was often part of discussions in the listening groups. While prosecutorial diversion programs for certain offenses and other alternatives to incarceration are growing increasingly common, Shah notes that many of those programs are still punitive in nature. As prosecutors who fashion themselves as progressives have risen to prominence, so has a tension between what it means to protect and heal a community from harm, what it means to serve justice, and how to do both at once in a way that doesn’t ultimately cause more harm.

“I think some district attorneys would say, ‘[Restorative justice] would eventually work us out of a job,’” says Shah. “That’s the whole point. How do we uplift that paradigm of a police officer and DA that’s thinking about what’s better for a community, and not what’s punitive?”

“We created that [punitive] narrative,” Shah continues, “So we can uncreate it.”

That process of listening and learning across cultural boundaries is central to the Listening Project’s recommendations. But as the movement for restorative justice grows in popularity, so do the challenges it faces. Central to those challenges, the report notes, is how to avoid institutionalizing or “professionalizing” restorative justice through trainings or certifications. Many practitioners fear this would veer the practice away from its community-based origins and goals.

As Shah and her colleagues assess their findings and reflect on the broader movement, she emphasized that restorative justice isn’t intended to be a fix-all solution to the myriad conflicts facing communities. “It’s not a panacea,” says Shah. “It’s not meant to be the only strategy, it’s meant to be one strategy.”

More in Podcasts